FUND AGREEMENT
This
Agreement dated as of the [14] day of [February], 2002 is made by and among
Nationwide Financial Services, Inc. (“NFS”) (including any affiliates and/or
subsidiaries listed on Exhibit A) and Royce & Associates, Inc. ("Royce"),
which serves as adviser to the mutual funds (the “Funds”) listed on Exhibit
B.
WHEREAS,
NFS or a subsidiary or affiliate thereof (collectively referred to as “NFS
Affiliate/Subsidiary”) provides administrative and/or recordkeeping services to
variable contracts, which may include, but are not limited to, variable annuity
contracts, variable life insurance policies and various retirements plans which
meet the definition of retirement plans under Sections 401, 403 and 457 of
the
Internal Revenue Code (the “Code”) (collectively, “Contracts”); and
WHEREAS,
NFS Affiliate/Subsidiary may issue variable annuity contracts and variable
life
insurance policies through separate accounts (“Variable Accounts”) as listed on
Exhibit A; and
WHEREAS,
the Contracts allow for the allocation of net amounts received by NFS to
sub-accounts which correspond to each Fund for investment in shares of the
Funds; and
WHEREAS,
selection of a particular sub-account is made by the contract owner or by
participants in various types of retirement plans and such contract owners
and/or participants may reallocate their investment options among the
sub-accounts in accordance with the terms of the Contracts; and
WHEREAS,
NFS and Royce mutually desire the inclusion of the Funds as investment options
for the Contracts; and
NOW
THEREFORE, NFS and Royce, in consideration of the promises and undertakings
described herein, agree that the Funds will be available in products and
services provided by NFS subject to the following:
REPRESENTATIONS
AND UNDERTAKINGS
REPRESENTATIONS
BY NFS
NFS
or an
NFS Affiliate/Subsidiary agrees to perform certain administrative services
(“Services”) as listed on Exhibit C.
NFS
represents that the NFS Affiliates/Subsidiaries, including Variable Accounts,
have been established and are in good standing under the state law in which
they
were organized. The Variable Accounts are registered under the
Investment Company Act of 1940, unless otherwise exempt therefrom.
NFS
and
its agents shall make no representations concerning the Funds or Fund shares
except those contained in the Funds’ then current prospectuses, Statements of
Additional Information or other documents produced by Royce (or an entity on
its
behalf) which contain information about the Funds. NFS agrees to
allow a reasonable period of time for Royce to review any advertising and sales
literature drafted by NFS (or agents on its behalf) with respect to the Funds
prior to use and prior to submitting such material to any
regulator.
NFS
acknowledges that the identity of Royce (and its affiliates’ and/or
subsidiaries’) customers and all information maintained about those customers
constitute the valuable property of Royce.
NFS
acknowledges that the services provided for under this Agreement by Royce are
not exclusive and that the same skill will be used in performing services to
other companies in similar contexts.
NFS
represents that the Contracts marketed as annuity contracts and/or life
insurance policies are currently treated as annuity contracts and/or life
insurance policies under the appropriate provisions of the Code, and that it
shall make every effort to maintain such treatment. NFS will promptly
notify Royce upon having a reasonable basis for believing that the Contracts
have ceased to be treated as annuity contracts or life insurance policies,
or
that the Contracts may not be so treated in the future.
For
Contracts issued through the Variable Accounts, NFS represents that each
Variable Account is a “segregated asset account” and that interests in each
Variable Account are offered exclusively through the purchase of a “variable
contract”, within the meaning of such terms pursuant to Section 1.817-5(f)(2) of
the Federal Tax Regulations, and that it shall make every effort to continue
to
meet such definitional requirements. NFS shall promptly notify Royce
upon having a reasonable basis for believing that such requirements have ceased
to be met or that they may not be met in the future.
REPRESENTATIONS
BY XXXXX
Xxxxx
acknowledges that it receives substantial savings as a result of NFS performing
those Services listed on Exhibit C on behalf of the Funds.
Royce
and
its agents shall make no representations about NFS except those contained in
publicly available documents or other documents produced by NFS (or an entity
on
its behalf). Royce agrees to allow a reasonable period of time for NFS to review
any advertising and sales literature drafted by Royce (or agents on its behalf)
with respect to NFS prior to use and prior to submitting such material to any
regulator.
Royce
acknowledges that the identity of NFS (and its affiliates’ and/or subsidiaries’)
customers and that all information maintained about those customers constitute
the valuable property of NFS.
Royce
acknowledges that the services provided for under this Agreement by NFS or
an
NFS Affiliate/Subsidiary are not exclusive and that the same skill will be
used
in performing services to other companies in similar contexts.
Royce
represents that the Funds are currently qualified as regulated investment
companies under Subchapter M of the Code, and that the Funds shall make every
effort to maintain such qualification. Royce shall promptly notify NFS upon
having a reasonable basis for believing that the Funds have ceased to so
qualify, or that they may not qualify as such in the future.
Royce
represents that any insurance Funds utilized in the Contracts currently comply
with the diversification requirements pursuant to Section 817(h) of the Code
and
Section 1.817-5(b) of the Federal Tax Regulations, if required, and that such
Funds will make every effort to maintain the Funds’ compliance with such
diversification requirements, unless the Funds are otherwise exempt from Section
817(h) and/or except as otherwise disclosed in each Fund’s prospectus. Royce
will notify NFS promptly upon having a reasonable basis for believing that
the
Funds have ceased to so qualify, or that the Funds might not so qualify in
the
future.
CONFIDENTIALITY
The
parties agree to keep agree to keep confidential all information, documentation
and/or data related to this Agreement, except as may be necessary to perform
services under this Agreement, as required by law, a court of competent
jurisdiction or other governing regulatory body, or as otherwise
may be agreed to in writing by the parties. Each party agrees not to
use, disclose or distribute to others any consumer non-public personal
information, except as necessary to perform the terms of this agreement or
as
permitted or required by law. This provision shall survive the
termination of this Agreement.
TRADING
Subject
to the terms and conditions of this Agreement, NFS shall be appointed to, and
agrees to act, as a limited agent of Royce for the sole purpose of receiving
instructions from authorized parties as defined by the Contracts for the
purchase and redemption of Fund shares prior to the close of regular trading
each Business Day. A "Business Day” shall mean any day on which the
New York Stock Exchange is open for trading and on which the Fund calculates
its
net asset value as set forth in the Fund’s most recent prospectus and Statement
of Additional Information. Except as particularly stated in this
paragraph, NFS shall have no authority to act on behalf of Royce or to incur
any
cost or liability on its behalf.
Until
such time as Royce and NFS are able to utilize the National Securities Clearing
Corporation ("NSCC") Defined Contribution Clearing and Settlement
("DCC&S") Fund/SERV system,
Royce
or
its designated agent will use its best efforts to provide to NFS or its
designated agent closing net asset value, change in net asset value, dividend
or
daily accrual rate information and capital gain information by 7:00 p.m. Eastern
Time each Business Day. NFS or its agent shall use this data to
calculate unit values. Unit values shall be used to process the same
Business Day’s contract transactions. Orders derived from, and in
amounts equal to, instructions received by NFS prior to the Close of Trading
on
the New York Stock Exchange on any Business Day ("Day 1") shall be transmitted
without modification (except for netting or aggregating such orders) to Royce
or
its designated agent by 9:00 A.M. Eastern Time on the next Business
Day. Such trades will be effected at the net assets value of each
Fund's shares calculated as of the Close of Trading on Day 1. Royce or its
designated agent will not accept any order made on a conditional basis or
subject to any delay or contingency. NFS shall only place purchase
orders for shares of Funds on behalf of its customers whose addresses recorded
on NFS’ books are in a state or other jurisdiction in which the Funds are
registered or qualified for sale, or are exempt from registration or
qualification as confirmed in writing by Royce.
Until
such time as Royce and NFS are able to utilize the DCC&S Fund/SERV system,
each party shall, as soon as practicable after its receipt of an instruction
or
confirmation transmitted, verify its receipt of such instruction or
confirmation, and in the absence of such verification such a party to whom
an
instruction or confirmation is sent shall not be liable for any failure to
act
in accordance with such instruction or confirmation, and the sending party
may
not claim that such an instruction or confirmation was received by the
other. Each party shall notify the other of any errors, omissions or
interruptions in, or delay or unavailability as promptly as
possible.
|
|
a)
|
For
those purchase orders not transmitted via the DCC&S Fund/SERV system,
NFS shall initiate payment to Royce or its designated agent in federal
funds no later than 1:00 P.M. on the Business Day following the day
on
which the instructions are treated as having been received by Royce
pursuant to this Agreement.
|
|
|
b)
|
For
those redemption orders not transmitted via the DCC&S Fund/SERV
system, Royce or its designated agent shall initiate payment in federal
funds no later than 1:00 P.M. on the Business Day following the day
on
which the instructions are treated as having been received by Royce
pursuant to this Agreement.
|
At
such
time as Royce and NFS are able to transmit information via the NSCC's DCC&S
Fund/SERV System:
|
|
a)
|
Orders
derived from, and in amounts equal to, instructions received by NFS
prior
to the Close of Trading on Day 1 shall be transmitted without modification
(except for netting and aggregation of such orders) via the NSCC's
DCC&S Fund/SERV system to Royce or its designated agent no later than
5:00 A.M. Eastern Time on the Next Business Day. Such trades
will be effected at the net asset value of each Fund's shares calculated
as of the Close of Trading on Day
1.
|
|
|
b)
|
Royce
and NFS shall mutually agree there may be instances when orders shall
be
transmitted to Royce or its designated agent via facsimile no later
than
9:00 A.M. rather than through the DCC&S Fund/SERV
system. In such instances, such orders shall be transmitted to
Royce or its designated agent via facsimile no later than 9:00 A.M.
Eastern Time on the next Business
Day.
|
|
|
c)
|
With
respect to purchase and redemption orders received by Royce or its
designated agent on any Business Day for any Fund, within the time
limits
set forth in this Agreement, settlement shall occur consistent with
the
requirements of DCC&S Fund/SERV
system.
|
At
such
time as Royce and NFS are able to transmit information via the DCC&S
Fund/SERV system, Royce or its designated agent shall send to NFS, via the
DCC&S Fund/SERV system, verification of net purchase or redemption orders or
notification of the rejection of such orders ("Confirmations ") on each Business
Day for which NFS has transmitted such orders. Such confirmations
shall include the total number of shares of each Fund held by NFS following
such
net purchase or redemption. Royce, or its designated agent, shall submit in
a
timely manner, such confirmations to the DCC&S Fund/SERV system in order for
NFS to receive such confirmations no later than 11:00 A.M. Eastern Time the
next
Business Day. Royce or its designated agent will transmit to NFS via DCC&S
NETWORKING system those Networking activity files reflecting account
activity. In addition, within five (5) business days after the end of
each month, Royce or its affiliate will send NFS a statement of account which
shall confirm all transactions made during that particular month in the
account.
DOCUMENTS
AND OTHER MATERIALS
DOCUMENTS
PROVIDED BY NFS
NFS
agrees to provide Royce, upon written request, any reports indicating the number
of shareholders that hold interests in the Funds and such other information
(including books and records) that Royce may reasonably request or as may be
necessary or advisable to enable it to comply with any law, regulation or
order.
DOCUMENTS
PROVIDED BY ROYCE
Within
five (5) Business Days after the end of each calendar month, Royce or its
designee shall provide NFS, or its designee, a monthly statement of account,
which shall confirm all transactions made during that particular
month.
Royce
shall promptly provide NFS, or cause NFS to be provided with, a reasonable
quantity of the Funds’ prospectuses, Statements of Additional Information and
any supplements thereto.
NOTICE
Each
notice required by this Agreement shall be given in writing to:
Nationwide
Financial Services, Inc.
Xxx
Xxxxxxxxxx Xxxxx 0-00-X0
Xxxxxxxx,
Xxxx 00000
Attention: Securities
Officer
Fax
Number: 000-000-0000
Royce
& Associates, Inc.
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxx X. Xxxxxxxxx
cc:
General Counsel
Fax
Number: 000-000-0000
Any
party
may change its address by notifying the other party(ies) in
writing.
VOTING
For
Variable Accounts that are registered under the 1940 Act and so long as and
to
the extent that the SEC continues to interpret the 1940 Act to require
pass-through voting privileges for variable contract owners, NFS shall
distribute all proxy material furnished by Royce (provided that such material
is
received by NFS or its designated agent at least 10 Business Days prior to
the
date scheduled for mailing to contract owners) and shall vote Fund shares in
accordance with instructions received from the contract owners who have
interests in such Fund shares. NFS shall vote the Fund shares for
which no instructions have been received in the same proportion as Fund shares
for which said instructions have been received from the contract owners,
provided that such proportional voting is not prohibited by a contract owner’s
plan or trust document, if applicable. NFS and its agents will in no
way recommend an action in connection with or oppose or interfere with the
solicitation of proxies in the Fund shares.
EXPENSES
All
expenses incident to the performance by NFS under this Agreement shall be paid
by NFS. Likewise, all expenses incident to the performance by Royce
under this Agreement shall be paid by Royce.
NFS
shall
not bear any of the expenses for the cost of registration of the Funds’ shares,
preparation of the Funds’ prospectuses, proxy materials, and reports and the
preparation of other related statements and notices required by law except
as
otherwise mutually agreed upon by the parties to the Agreement.
Should
a
Fund no longer be available in an NFS contract, Royce shall be responsible
for
any and all expenses incurred as a result of removing such Fund as an available
investment option under the Contract.
Should
NFS desire to no longer have a Fund available in an NFS contract, NFS shall
be
responsible for any and all expenses incurred as a result of removing such
Fund
as an available investment option under the Contract.
Should
a
removal of a fund as an available investment option be mutually desired by
the
parties, the parties agree to equally share any expenses incurred as a result
of
removing such Fund as an available investment option.
Both
NFS
and Royce agree to provide reasonable advance notice of the election to remove
a
fund as an available investment option in order to permit the parties to file
documentation as may be required under applicable law.
CONFLICTS
Each
party agrees to inform the other of the existence of, or any potential for,
any
material conflicts of interest between the parties and any possible implications
of the same.
It
is
agreed that if it is determined by a majority of the members of the Boards
of
Directors of the Funds, or a majority of the Funds’ disinterested Directors,
that a material conflict exists caused by NFS, NFS shall at its own expense,
take whatever steps are necessary to remedy or eliminate such material
conflict.
It
is
agreed that if it is determined by NFS that a material conflict exists caused
by
Royce, Royce shall at its own expense, take whatever steps are necessary to
remedy or eliminate such material conflict.
INDEMNIFICATION
Each
party shall promptly notify the other party(ies) in writing of any situation
which presents or appears to involve a claim which may be the subject of
indemnification under this Agreement and the indemnifying party shall have
the
option to defend against any such claim. In the event the
indemnifying party so elects, it shall notify the indemnified party and shall
assume the defense of such claim, and the indemnified party shall cooperate
fully with the indemnifying party, at the indemnifying party’s expense, in
defense of such claim. Notwithstanding the foregoing, the indemnified
party shall be entitled to participate in the defense of such claim at its
own
expense through counsel of its own choosing. Neither party shall
admit to wrong-doing nor make any compromise in any action or proceeding which
may result in a finding of wrongdoing by the other party without the other
party’s prior written consent. Any notice given by the indemnifying
party to an indemnified party or participation in or control of the litigation
of any such claim by the indemnifying party shall in no event be deemed an
admission by the indemnifying party of culpability, and the indemnifying party
shall be free to contest liability among the parties with respect to the
claim.
INDEMNIFICATION
BY NFS
NFS
agrees to reimburse and/or indemnify and hold harmless Royce and each of its
directors, officers, employees, agents and each person, if any, who controls
Royce within the meaning of the Securities Act of 1933 (the “1933 Act”)
(collectively, “Affiliated Party”) against any losses, claims, damages or
liabilities (“Losses”) to which Royce or any such Affiliated Party may become
subject under the 1933 Act or otherwise, insofar as such losses (or actions
in
respect thereof) arise out of or are based upon, but not limited
to:
|
(1)
|
Any
untrue statement or alleged untrue statement of any material fact
contained in information furnished by
NFS;
|
|
(2)
|
The
omission or alleged omission to state in the Registration Statements,
Prospectuses, Informational Brochures or other similar
material, a material fact required to be stated therein or necessary
to
make the statements therein not
misleading;
|
|
(3)
|
Conduct,
statements or representations of NFS or its agents, with respect
to the
sale and distribution of Contracts for which Fund shares are an investment
option;
|
|
(4)
|
The
failure of NFS or an NFS Affiliate/Subsidiary to provide the services
and
furnish the materials under the terms of this
Agreement;
|
|
(5)
|
A
breach of this Agreement or of any of the representations contained
herein; or
|
|
(6)
|
Any
failure to register Contracts or Variable Account that do not meet
any
exemptions under federal or state securities laws, state insurance
laws or
failure to otherwise comply with applicable laws, rules, regulations
or
orders.
|
Provided
however, that NFS shall not be liable in any such case to the extent that such
statement, omission or representation or such alleged statement, alleged
omission or alleged representation was made in reliance upon and in conformity
with written information furnished to NFS by or on behalf of Royce specifically
for use therein.
NFS
shall
reimburse any legal or other expenses reasonably incurred by Royce or any
Affiliated Party in connection with investigating or defending any such Losses,
provided however, that NFS shall have prior approval of the use of said counsel
or the expenditure of said fees.
This
indemnity agreement shall be in addition to any liability that NFS may otherwise
have.
INDEMNIFICATION
BY XXXXX
Xxxxx
agrees to reimburse and/or indemnify and hold harmless NFS and/or NFS
Affiliate/Subsidiary and each of its directors, officers, employees, agents
and
each person, if any, who controls NFS or NFS Affiliate/Subsidiary within the
meaning of the Securities Act of 1933 (the “1933 Act”) (collectively,
“Affiliated Party”) against any losses, claims, damages or liabilities
(“Losses”) to which NFS, NFS Affiliate/Subsidiary or any such Affiliated Party
may become subject under the 1933 Act or otherwise, insofar as such Losses
(or
actions in respect thereof) arise out of or are based upon, but not limited
to:
|
(1)
|
Any
untrue statement or alleged untrue statement of any material fact
contained in information furnished by Royce, including but not limited
to,
the Registration statements, Prospectuses, or sales literature of
the
Funds;
|
|
(2)
|
The
omission or alleged omission to state in the Registration Statements,
Prospectuses, Informational Brochures or other similar
material, a material fact required to be stated therein or necessary
to
make the statements therein no
misleading;
|
|
(3)
|
Royce’s
failure to keep applicable Funds qualified as regulated investment
companies as required by the 1940 Act and applicable regulations
thereunder, and if applicable, fully diversified as is required by
the
Code and applicable regulations
thereunder;
|
|
(4)
|
The
failure of Royce to provide the services and furnish the materials
under
the terms of this Agreement;
|
|
(5)
|
A
breach of this Agreement or of any of the representations contained
herein; or
|
|
(6)
|
A
failure to register the Funds under federal or state securities laws
or to
otherwise comply with such laws, rules, regulations or
orders.
|
Provided
however, that Royce shall not be liable in any such case to the extent that
such
statement, omission or representation or such alleged statement, alleged
omission or alleged representation was made in reliance upon and in conformity
with written information furnished to Royce by or on behalf of NFS specifically
for use therein.
Royce
shall reimburse any legal or other expenses reasonably incurred by NFS or any
Affiliated Party in connection with investigating or defending any such Losses,
provided however, that Royce shall have prior approval of the use of said
counsel or the expenditure of said fees.
This
indemnity agreement shall be in addition to any liability which Royce may
otherwise have.
SERVICE
FEES
In
consideration for the Services provided by NFS pursuant to this Agreement,
Royce
will calculate and pay, or cause one of its affiliates to pay, and NFS or an
NFS
Affiliate/Subsidiary that is registered as a broker/dealer, will be entitled
to
receive from Royce a fee (“Service Fee”). Such fee will be calculated
at an annualized rate equal to the rates shown on Exhibit D of the average
daily
net assets of each Fund for which NFS performed administrative services during
the period in which they were earned.
The
Service Fees will be paid to NFS, or its designee, by electronic funds transfer
as soon as practicable, but no later than 30 days after the end of the period
in
which they were earned. If the Fund assets administered by NFS are
less than $1 billion as of December 31 of the prior calendar year, the Service
Fees will be paid on a quarterly basis. Once assets are greater than
$1 billion, the Service Fees will be paid on a monthly basis. NFS
will provide to Royce a statement showing the calculation of the amounts to
be
paid by Royce for the relevant period and such other supporting data as may
be
reasonably requested by Royce.
NFS
acknowledges that Royce may pay the Service Fee as follows:
|
(a)
|
Each
Fund will pay a portion of the Service Fee that Royce designates
as
representing transfer agent, recordkeeping, administrative servicing
and/or shareholder servicing fees which the Fund would otherwise
pay if
accounts were direct shareholders of the
Fund.;
|
|
(b)
|
Royce
will pay any portion of the Service Fee not paid by the
Funds.
|
The
Service Fee shall be calculated as an annualized percentage of the average
aggregate amount invested in the Funds for the applicable period. The
average aggregate amount shall be computed by totaling the aggregate investment
on each business day during the period and dividing by the total number of
Business Days during the period.
The
parties agree that a Service Fee will be paid to NFS or its designee according
to this Agreement with respect to each Fund as long as shares of such Fund
are
held by an NFS Affiliate/Subsidiary on behalf of the beneficial owners of
contracts issued by an NFS Affiliate/Subsidiary. This provision will
survive the termination of this Agreement.
NFS
and
Royce agree that the Service Fees described in this Agreement are for
administrative and distribution services of the Funds only, and do not
constitute payment in any manner for investment advisory services for the Fund
or for costs of administrative and distribution services on behalf of the
Contracts.
COMPLIANCE
WITH AGREEMENT
The
forbearance or neglect of any party to insist upon strict compliance by another
party with any of the provisions of this Agreement, whether continuing or not,
or to declare a forfeiture of termination against the other parties, shall
not
be construed as a waiver of any rights or privileges of any party
hereunder. No waiver of any right or privilege of any party arising
from any default or failure of performance by any party shall affect the rights
or privileges of the other parties in the event of a further default or failure
of performance.
TERMINATION
This
Agreement shall terminate as to the availability of shares of the Funds for
new
Contracts:
|
(1)
|
at
the option of NFS or Royce upon at least 90 days advance written
notice to
the other;
|
|
(2)
|
at
any time upon Royce's election, if the Funds determine that liquidation
of
the Funds is in the best interest of the Funds or their beneficial
owners. Reasonable advance notice of election to liquidate
shall be provided to NFS in order to permit the substitution of Fund
shares, if necessary, with shares of another investment company pursuant
to the 1940 Act and other applicable securities
regulations;
|
|
(3)
|
if
the applicable annuity contracts and life insurance policies are
not
treated as annuity contracts or life insurance policies by the applicable
regulators or under applicable rules and
regulations;
|
|
(4)
|
if
the Variable Accounts are not deemed “segregated asset accounts” by the
applicable regulators or under applicable rules and
regulations;
|
|
(5)
|
at
the option of NFS, if Fund shares are not available for any reason
to meet
the requirements of Contracts as determined by NFS. Reasonable
advance notice of election to terminate (and time to cure) shall
be
furnished by NFS;
|
|
(6)
|
at
the option of NFS or Royce, upon institution of relevant formal
proceedings against the broker-dealer(s) marketing the Contracts,
the
Variable Accounts, NFS, an NFS Affiliate/Subsidiary or the Funds
by the
NASD, the IRS, the Department of Labor, the SEC, state insurance
departments or any other regulatory
body;
|
|
(7)
|
upon
a decision by NFS, in accordance with the 1940 Act and applicable
regulations, to substitute such Fund shares with the shares of another
investment company for Contracts for which the Fund shares have been
selected to serve as the underlying investment medium. NFS
shall give at least 60 days written notice to Royce of any proposal
to
substitute Fund shares;
|
|
(8)
|
upon
assignment of this Agreement unless such assignment is made with
the
written consent of each party; and
|
|
(9)
|
in
the event Fund shares are not registered, issued or sold pursuant
to
federal law and state securities laws, or such laws preclude the
use of
Fund shares as an underlying investment medium of Contracts issued
or to
be issued by an NFS Affiliate/Subsidiary. Prompt written notice
shall be given by either party to the other in the event the conditions
of
this provision occur.
|
JURISDICTION
This
Agreement shall be construed and the provisions hereof interpreted under and
in
accordance with the laws of Ohio, without respect to its choice of law
provisions and in accordance with the 1940 Act. In the case of any
conflict, the 1940 Act shall control.
PARTNERSHIPS/JOINT
VENTURES
Nothing
in this Agreement shall be deemed to create a partnership or joint venture
by
and among the parties hereto.
AMENDMENTS
TO THIS AGREEMENT
This
Agreement supersedes any and all prior Agreements made by and between the
parties.
This
Agreement may not be amended or modified except by a written amendment, which
includes any amendments to the Exhibits, executed by all parties to the
Agreement.
EXECUTION
Each
party hereby represents and warrants to the other that the persons executing
this Agreement on its behalf are duly authorized and empowered to execute and
deliver the Agreement and that the Agreement constitutes a legal, valid and
binding obligation, and is enforceable in accordance with its
terms. Except as particularly set forth herein, neither party assumes
any responsibility hereunder and will not be liable to the other for any
damages, loss of data, delay or any other loss whatsoever caused by events
beyond its control.
This
Agreement may be executed by facsimile signature and it may be executed in
one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
NATIONWIDE
FINANCIAL SERVICES,
INC.
_________________________________________
By: Xxxxxxx
X.
Xxxxxx
Title:
Vice President
Investment
Management Relationships
ROYCE
& ASSOCIATES, INC.
__________________________________________
By:
[Xxxx
X. Xxxxxxxx]
Title:
[Chief Operating Officer]
EXHIBIT
A
This
Exhibit corresponds to the Fund Agreement dated [February 14, 2002],
2002
Registered
Broker Dealers
Nationwide
Advisory Services, Inc.
Nationwide
Investment Services Corporation
Affiliates
and Subsidiaries
Nationwide
Life Insurance Company
Nationwide
Life and Annuity Insurance Company
Nationwide
Trust Company, FSB
Nationwide
Retirement Solutions, Inc.
National
Deferred Compensation, Inc.
Variable
Accounts
Nationwide
Variable Account
Nationwide
Variable Account-II
Nationwide
Variable Account-3
Nationwide
Variable Account-4
Nationwide
Variable Account-5
Nationwide
Variable Account-6
Nationwide
Fidelity Advisor VA
Nationwide
Variable Account-8
Nationwide
Variable Account-9
Nationwide
Variable Account-10
Nationwide
Variable Account-11
Nationwide
Variable Acount -12
Nationwide
Variable Account-13
Multi-Flex
Variable Account
Nationwide
VA Separate Account-A
Nationwide
VA Separate Account-B
Nationwide
VA Separate Account-C
Nationwide
VA Separate Account-D
Nationwide
VLI Separate Account
Nationwide
VLI Separate Account-2
Nationwide
VLI Separate Account-3
Nationwide
VLI Separate Account-4
Nationwide
VLI Separate Account-5
Nationwide
VLI Separate Account-6
Nationwide
VL Separate Account
Nationwide
VL Separate Account-A
Nationwide
VL Separate Account-B
Nationwide
VL Separate Account-C
Nationwide
VL Separate Account-D
Nationwide
DC Variable Account
Nationwide
DC variable Account-II
NACo
Variable Account
Nationwide
Governmental Plans Variable Account
Nationwide
Governmental Plans Variable Account-II
Nationwide
Qualified Plans Variable Account
Nationwide
Private Placement Variable Account
Ohio
DC
Variable Account
EXHIBIT
B
This
Exhibit corresponds to the Fund Agreement dated [February 14], 2002
|
FUNDS
|
|
Royce
Capital Fund – Royce Micro-Cap Portfolio
|
|
Royce
Capital Fund – Royce Small-Cap Portfolio
|
EXHIBIT
C
Services
Provided by NFS
Pursuant
to the Agreement, NFS shall perform all administrative and shareholder services
with respect to the Contracts and Plans, including but not limited to, the
following:
|
1.
|
Maintaining
separate records for each Contract owner and each Plan, which shall
reflect the Fund shares purchased and redeemed and Fund share balances
of
such Contract owners and Plans. Nationwide will maintain
accounts with each Fund on behalf of Contract owners and Plans, and
such
account shall be in the name of Nationwide (or its nominee) as the
record
owner of shares owned by such Contract owners and
Plans.
|
|
2.
|
Disbursing
or crediting to Contract owners and Plans all proceeds of redemptions
of
shares of the Funds and all dividends and other distributions not
reinvested in shares of the Funds.
|
|
3.
|
Preparing
and transmitting to Contract owners and Plans, as required by law,
periodic statements showing the total number of shares owned as of
the
statement closing date, purchases and redemptions of Fund shares
during
the period covered by the statement and the dividends and other
distributions paid during the statement period (whether paid in cash
or
reinvested in Fund shares), and such other information as may be
required,
from time to time, by Contract owners and
Plans.
|
|
4.
|
Supporting
and responding to service inquires from Contract owners and
Plans.
|
|
5.
|
Maintaining
and preserving all records required by law to be maintained and preserved
in connection with providing the Services for Contract owners and
Plans.
|
|
6.
|
Generating
written confirmations and quarterly statements to Contract owners
and Plan
participants.
|
|
7.
|
Distributing
to Contract owners and Plans, to the extent required by applicable
law,
Funds’ prospectuses, proxy materials, periodic fund reports to
shareholders and other materials that the Funds are required by law
or
otherwise to provide to their shareholders or prospective
shareholders.
|
|
8.
|
Transmitting
purchase and redemption orders to the Funds on behalf of the Contract
owners and Plans.
|
EXHIBIT
D
This
Exhibit corresponds with the Fund Agreement dated [February 14],
2002.
|
Basis
Points Per Annum
|
|
|
· Royce
Capital Fund – Royce Micro-Cap Portfolio (XX Bps)
· Royce
Capital Fund – Royce Small-Cap Portfolio (XX Bps)
|
Funds
available for NFS (including any affiliates and/or
subsidiaries)
|
AMENDMENT
TO
THE
THIS
AMENDMENT, dates as of _[3-15]____________, 2004, by and between
NATIONWIDE FINANCIAL SERVICES, INC. (“NFS”) and ROYCE
& ASSOCIATES, LLC, formerly Royce & Associates, Inc. (“Royce”),
on behalf of each of the registered investment companies and/or series thereof
listed in Exhibit B of the Agreement defined below (individually a “Fund” and
collectively as the “Funds”):
WITNESSETH:
WHEREAS,
NFS, Royce and the Funds
entered into a Fund Agreement dated February 14, 2002 (the “Agreement”);
and
WHEREAS,
NFS, Royce and the Funds now
wish to amend and restate in its entirety Exhibit A of the Agreement in the
form
attached hereto.
NOW
THEREFORE, in consideration of the
above, NFS, Royce and the Funds hereby amend Exhibit A of the Agreement in
the
form attached hereto and made a part hereof.
IN
WITNESS WHEREOF, NFS, Royce and the
Funds have caused this Amendment to be executed by their duly authorized
officers effective as of the day and year first above written.
NATIONWIDE
FINANCIAL SERVICES,
INC.
By: ____________________________________
Name: __[Xxxxxxx
X. Xxxxxx]_________________
Title: [Vice
President]______
ROYCE
CAPITAL
FUND
On
behalf of each series listed on
Exhibit A
By: ____________________________________
Name: _John
D. Diederich____________________
Title: Vice
President
ROYCE
&
ASSOCIATES,
LLC
By: ____________________________________
Name: ___John
D. Diederich__________________
Title: Chief
Operating Officer
EXHIBIT
A
Registered
Broker Dealers
Nationwide
Investment Services Corporation
Affiliates
and Subsidiaries
Nationwide
Life Insurance Company
Nationwide
Life and Annuity Insurance Company
Nationwide
Trust Company, FSB
Nationwide
Retirement Solutions, Inc.
National
Deferred Compensation, Inc.
All
existing and future Variable Accounts including but not limited to the
following:
Nationwide
Variable Account
Nationwide
Variable Account-II
Nationwide
Variable Account-3
Nationwide
Variable Account-4
Nationwide
Variable Account-5
Nationwide
Variable Account-6
Nationwide
Fidelity Advisor VA
Nationwide
Variable Account-8
Nationwide
Variable Account-9
Nationwide
Variable Account-10
Nationwide
Variable Account-11
Nationwide
Variable Account-12
Nationwide
Variable Account-13
Nationwide
Variable Account-14
Multi-Flex
Variable Account
Nationwide
VA Separate Account-A
Nationwide
VA Separate Account-B
Nationwide
VA Separate Account-C
Nationwide
VA Separate Account-D
Nationwide
VLI Separate Account
Nationwide
VLI Separate Account-2
Nationwide
VLI Separate Account-3
Nationwide
VLI Separate Account-4
Nationwide
VLI Separate Account-5
Nationwide
VLI Separate Account-6
Nationwide
VL Separate Account
Nationwide
VL Separate Account-A
Nationwide
VL Separate Account-B
Nationwide
VL Separate Account-C
Nationwide
VL Separate Account-D
Nationwide
DC Variable Account
Nationwide
DC Variable Account-II
NACo
Variable Account
Nationwide
Governmental Plans Variable Account
Nationwide
Governmental Plans Variable Account-II
Nationwide
Qualified Plans Variable Account
Nationwide
Private Placement Variable Account
Ohio
DC
Variable Account
